Lords Sitting of 2 April 1830

MINUTES.
The Suits in Equity Bill was read a second time. The Smugglers' Families Maintenance Bill was also read a second time. Lord. J. RUSSELL, and other Members of the Commons, brought up the St. Giles's Vestry Bill, which was read a first time.
Returns Ordered. On the Motion of the Earl of ROSEBERY,

who said that seeing by the Votes of the other House that a Bill had been introduced into it for Altering and Reforming the Court of Session in Scotland, which would bring the whole subject of the Court of Session necessarily under their Lordships' consideration, he would move for a return
of the state of the Court of Session Fee Fund, established by the 50th Geo. III. cap. 112, from the 21st June, 1821, to the latest period.
Petitions Presented. Against the Renewal of the East India Company's Charter—By Lord WHARNCLIFFE, from the inhabitants of Pudsey, Bowling, and Bierley; from Stanninglyand Alverthorp:—By Lord HOLLAND, from Swannington, in the County of Derby:—By Lord AUCKLAND, from Hunslet, Gomershall, Soothill, and Shipley;—By the Marquis of LANSDOWN, from Arbroath, for the holding of the Assizes for the West Hiding of the County of York, at Wakefield:—By Lord WHARNCLIFFE, from the inhabitants of Henley, Shepley, and Dalton, for the Amelioration of the Criminal Code:—By the BISHOP of LONDON, from the inhabitants of the Tower District, and from Spratton, and Crcaton:—By the Earl of CHICHESTER, from Lewes, and by the Marquis of LANSDOWN, from Warrington, for the removal of Disabilities from the Jews:—By the Duke of NORFOLK, from the Jews inhabiting the West of London, Chatham, and Rochester.

The noble Duke said he warmly supported the prayer of these Petitions.
By Lord KINO, from the Jews inhabiting the Southern District of London; and by the Earl of CARNARVON, from the Jews of Portsmouth. For inquiring into the Corporation and Crown Lands of Ireland:—By Lord KING, from Thomas Flanagan. Against Suttees—By Lord AUCKLAND from Dissenting Congregations at Southport, and North Meols:—By Earl GOWER, from Dissenting Congregations at Shelton, Burslem, Lane End, Lane Delph, and New-castle-Under-Lyne. And for the Extension of the Poor-laws to Ireland:—By the Earl of DARNLEY, from John Lawless.

GREECE.
Lord Holland Lord Holland, seeing the noble Secretary of State for Foreign Affairs in his place, wished to put a question to him on a subject in which the public took much interest. The noble Secretary, at the beginning of the Session, had stated that the negociations relative to the Settlement of Greece were so far advanced, that he hoped soon to be able to lay the papers on the Table. What he wished to ask was, whether any unforeseen delay had occurred? and if there had, whether the delay was on account of mere matter of form or not? The noble Secretary must be well aware that this was a matter in which the public felt a great interest, and therefore it would be desirable that he should mention at what time he expected to be able to lay the papers on the Table.
The Earl of Aberdeencould not exactly fix on a time when he should be able to produce the papers; but he had hopes that he should be able to do so soon after the holidays. The noble Earl stated in reply to a further question from Lord Holland, that as to the cause of the delay, there were some points still to be settled; but the three Powers were acting in complete concert.

AMENDMENT OF THE LAW.
The Marquis of Lansdown The Marquis of Lansdown, wished to put a question to the noble and learned Lord on the Woolsack, relative to the projected Amendments in Law Procedure. In one of the reports of the Real Property Commissioners, they had suggested some most valuable regulations relative to fines and recoveries, the levying and suffering of which were attended with great delay and expense, and hazard. Among the bills brought into the House for carrying into effect the legal improvements, he did not perceive that there was one on the point which he had mentioned; and he wished to know from the noble Lord, whether he had it in view to bring for-
1190
ward a bill on that head in the course of the present Session?
The Lord Chancellorreplied, that he had no intention to propose a measure of the kind at present, and the reason was, that the Amendments suggested by the Real Property Commissioners were so much connected with each other, that it was hazardous to legislate on one point until they had a general view of the whole, and this had been suggested by the Commissioners themselves in their first Report. But the noble Marquis might be assured that he would pay every attention to the subject.

ALGIERS.
The Marquis of Clanricarde The Marquis of Clanricarde, seeing the noble Foreign Secretary in his place, wished to ask him a question on a subject of considerable importance. Their Lordships were aware that the French were preparing an expedition against Algiers, and he was desirous to know whether the Government of France was in communication with our Government on the subject of that expedition?
The Earl of Aberdeenreplied, that the two Governments were in communication on the subject, and that Ministers had not observed any indisposition on the part of the French Government to afford the most satisfactory explanations.

EAST RETFORD WITNESSES' BILL.
The Marquis of Salisburyrose to move the third reading of the East Retford Witnesses' Indemnity Bill. It had been so much the practice to pass bills of this kind under similar circumstances, that, he thought it would pass as a matter of course, and therefore he had not given long notice before he brought in this Bill. He certainly had no intention to smuggle it through the House, for he had not anticipated opposition, especially from the noble Lords opposite. Now he understood that a noble Lord (Holland) on the opposite side meant to oppose it on account both of its principle and its provisions. He had, therefore, thought proper to inquire into the practice of their Lordships' House, and he found that it had been the practice to pass bills of that kind, under similar circumstances, for nearly a century. It had happened in three instances lately, and it would be impossible to get the witnesses to attend to give evidence in a case of this kind, unless they were indemnified from the conse-

1191
quences of criminating themselves. He hoped, therefore, that the noble Lords who so ably supported him in the Penryn case would assist him now, and he must say that the noble Lord's opposition came rather late, when it was reserved for the third reading of the Bill. He had moved that witnesses in this case of East Retford should be examined at the Bar of their Lordships' House, and he considered it absolutely necessary so follow up that motion with the bringing' in of this Bill to indemnify the witnesses, who could hardly be called upon to answer questions tending to criminate themselves without an indemnity of this description. In so doing, he had only followed the usual practice of their Lordships' House in similar cases. This had been clone in the Shoreham case, in 1771, and afterwards in 1782, and in the late cases. But he had thought it his duly to look farther back, and he found that the principle and practice were referred to in an Address of this House relative to the famous case of Ashby and White. It was there stated, that the elective franchise was incident to the freehold, or founded on custom, and constituted a civil right which this House could not take away without an examination of witnesses at the Bar, that the parties who might think themselves aggrieved might have an opportunity of defending themselves and their property. This, then, was evidently the practice of this House for a long time, and was founded on the principle that the House ought to be peculiarly tender in meddling with private property; and that, therefore, every possible opportunity ought to be afforded to the persons affected by a bill like the East Retford Bill, to express their dissent, and to defend themselves and their rights. 80 peculiarly delicate was the House in meddling with matters of private property, that they had no less than sixteen Standing Orders relating to that particular subject. The noble Lord, he understood, meant to contend that there was no reason for examining witnesses at all; but if they did not examine witnesses they had no other alternatives than to throw out the Bill, or condemn the parties unheard, and without allowing them an opportunity to defend themselves and their property. If they did examine witnesses, then, in order to be able to do so with effect, they must pass this Bill of Indemnity. As to the expediency of the thing, he thought
1192
that the experience of former precedents was in favour of the Bill in that view, and it was certainly not very fitting that they should by a side wind destroy a practice which had prevailed for such a long series of years. But he had heard that it was the intention of the noble Lord to contend that the examination of witnesses was not necessary in this case, because this was not a disfranchising or a disqualifying bill, but merely a bill to extend the franchise to the Hundred of Bassetlaw. He did not mean to say that he was much of a lawyer, but looking at the common sense of the thing, he thought that it was a very different matter for a person to have an elective franchise, which he exercised as one of a hundred, or one which he exercised as one of a thousand. Upon the whole he thought the examination of witnesses in this case was founded on principle, practice, and precedent, from which their Lordships ought not to depart; and if witnesses were to be examined, it was necessary to pass this Bill.
Lord Hollanddid not mean to accuse the noble Marquis of attempting to smuggle the Bill through the House, but he regretted that the attention of the House had not been more prominently directed to it in an earlier stage, although he freely acquitted the noble Marquis of an attempt to take the House by surprise. The noble Marquis had said that his opposition had come rather late; and he admitted that he ought to have urged his objections when the Bill was brought in, or on the second reading, and if he had done so, it would have been so much more for the advantage of his argument; but, unfortunately, his attention had not been called to it. The noble Marquis had supposed many grounds for his opposition to the Bill, and had endeavoured to upset them, apparently much to his own satisfaction. The noble Marquis had started many hares, but he had not started the real game, which he would find too strong to deal with. His objection was not so much to the principle of the Bill, nor to its provisions, as to the time, the manner, and the circumstances. The bill with reference to which this Bill was brought in, was called a bill to prevent Bribery and Corruption at the Election of Members of Parliament for the Borough of East Retford, and he maintained that the examination of witnesses at their Lordships' Bar would be not only useless,

1193
but be attended with injury to the public. The matter had been examined in an Election Committee of the other House—the proper tribunal appointed by law for the purpose—and there was no petition either for or against that bill. The precedents mentioned by the noble Marquis did not apply in this case, for it was one in which there was no necessity for the examination of witnesses to prove the preamble of the bill, and therefore no occasion for a bill to save the witnesses from the consequences of criminating themselves. There were three species of bills usually brought before Parliament—one sort of bills dealing with Private Property, another sort called bills of Pains and Penalties, and a third sort having for their object some advantage to the community, and called Public Bills. In the cases of the two first of these kinds of bills it might be necessary to call witnesses to prove the allegations in the preambles to the bills; but this was a bill of the third description, or a public bill, in which there was no necessity for calling witnesses to prove the preamble; for, notwithstanding what had been said by the noble Marquis, he maintained that this was not a bill in the nature of a bill of Pains and Penalties. He denied that the measure for the disfranchisement of East Retford partook, as was contended, of the nature of a bill of Pains and Penalties. It disfranchised no individual by name, and as an individual, its effect merely was, to extend the franchise—it left all who were already in possession still in undisturbed enjoyment of their rights—it only increased the number of those on whom the right was conferred; that certainly would diminish the value of the right, considered merely as a source of profit; but as a trust, which it indisputably was, that view of the question could not be recognised. Neither in the frame or nature of the Bill did it partake of the nature of a bill of Pains and Penalties—if it did, the House, in its merciful consideration, would have recourse to those wise and safe forms from which, in no case affecting rights or property, did it ever depart. A most material objection to the Bill then before them was, that it pre-supposed the insufficiency of the evidence upon the Disfranchisement bill; and in his apprehension, it was scarcely an expedient proceeding to declare that evidence insufficient which had enabled the House of Com-
1194
mons to come to a decision. That evidence was brought regularly before a competent tribunal (a Select Committee of the House of Commons), and he conceived that the evidence then produced would suffice at their Lordships' bar. He asserted that the Bill in question was not a bill of Pains and Penalties, and he did so upon the broad principle that the elective franchise was not a right or a property, but a trust, subject to abuse; and which the Legislature might alter, revoke, modify, or transfer, as it thought proper. If in doing so it produced any consequences injurious to individuals, it would be perfectly competent to them to come before a Parliament whose doors were never closed against those who had real grievances to complain of. The bill respecting Shoreham incapacitated individuals, and was so far different from the East Retford Bill; but he attached no great importance to the precedent, and would not trouble their Lordships with any notice of it; but there could be no doubt that it did inflict punishment upon some individuals, and therefore was in part a bill of Pains and Penalties—it was a bill for putting an end to the fraud, hypocrisy, and corruption of a set of men desiring to assume a plausible appellation—calling themselves a Christian Society—whose object was, to get possession of the borough and bring it to the best market. The bill in that case was to throw the franchise into the neighbouring hundred. The bill, in the emphatic language of Lord Chatham, was a bill having two objects—one of which was, to transfer the elective franchise from the Banks of the Ganges to the English county of Sussex. On account of the mixed nature of the bill, it was considered a bill of Pains and Penalties. In that case evidence was considered necessary; but in the bills introduced in the Cricklade or Aylesbury cases, there was nothing which could warrant their being justly considered as bills of Pains and Penalties. From the notion, indeed, conceived of the double object of the New Shoreham bill, the same course was followed as to evidence in other cases. In the Aylesbury case two petitions were presented, one for and another against the bill, but the course taken by the House in that case was, that the counsel and witnesses in favour of the bill were ordered to withdraw, and the counsel against the bill were heard in the first instance. If the measure to which,

1195
the present bill had reference were a bill of Pains and Penalties, there could be no doubt that the course proposed would be the proper and legitimate course. For the duty of the House would be, to see that the allegations contained in the preamble of the Bill were proved. The House acted in some sort in the capacity of a public prosecutor, the onus probandi lay upon it, and it was bound to prove the preamble before it inflicted punishment. In a question of property, likewise, the same course was to be pursued, and for similar reasons. As the persons by whom the privilege was enjoyed held it, not as a property, but as a trust, there could be no question that they stood quite in a different relation from those who came before their Lordships as liable to injury from a bill of Pains and Penalties. Then, if it should appear—as no doubt it did, from the evidence before the Committee of the House of Commons—that the electors of that borough had been guilty of polluting at its source the other branch of the Legislature—had done all that they could to lower its character and impair its authority—the Parliament, that is, the King, Lords and Commons, were entitled to pass a bill, not for disfranchising those electors so much as for preventing the abuse of the trust reposed in them; and they were entitled to pass that Bill without its being subjected to the incidents of a private bill, or fettered with the forms of a judicial proceeding. The Crown itself had often been limited and regulated, and even transferred from one person to another, and from one family to another, without any examination of witnesses. It would not, he presumed, be denied that that was a vested right, quite as much as any right of election; and it scarcely was expected that the Duke of Savoy would be called to the bar of that House, and heard by counsel, and his witnesses examined, for the purpose of ascertaining whether he was a Papist or a person of an arbitrary disposition. When that great and important trust was made the subject of legislation, who could raise a doubt that the Parliament possessed full right to legislate upon the petty and miserable trust which formed the object of the bill under consideration? At the period of the Scotch and Irish Unions, many individuals were deprived of their franchises, and yet no judicial proceedings were instituted—no witnesses were examined: bad they begun
1196
to examine witnesses they never would have got through the Union question. Nay, further, in Ireland, Peers were deprived of sitting and voting in Parliament, and many boroughs received compensation for the loss they sustained, but no one dreamt of proposing to prove the preamble of the Bill, depriving them of these rights. When that most weighty act was under consideration, no witnesses were examined; but on this trifling matter, the most scrupulous formality was to be observed. The present differed altogether from the common-law rights possessed by freeholders—it was much more to be considered in the light of a trust conferred by a charter. There was also the measure of last year with respect to a large body of freeholders in Ireland,—of men whose right of voting was not, as in the case of corporations, held in trust, but existed by common law. Those men were disfranchised without any evidence being heard at the Bar: on the contrary, their petition to be heard was refused. He owned that his consent to that measure was wrung from him only by his sense of the great benefit of the measure which accompanied it. But that measure of disfranchisement was passed without examining any evidence. Besides, the practice against which he was contending opposed itself to all moderate and gradual reform—for a few of those who might oppose themselves to such reforms might, by interposing objections, and insisting upon strict formalities; create such delays as would defeat any plan of reform. He could not help repeating an often-repeated maxim of Lord Bacon's, that "Time was the greatest of all innovators." The duty of Parliament should be to afford every useful and safe benefit to the innovations of time, by adapting its proceedings to the growth and progress of society, and the altered situation of the country; and if anything could add to their Lordships' motives for such adaptation, it was the necessity which existed that that particular House should interpose and remove any impediments to that wise and salutary reform which time and circumstances demanded; which it was to advance, and which, if they impeded, their duty would lose much of its beneficial effects, but ultimately none of its force. The great Lord Somers had said, that there were some things so plain and evident that they did not admit of legal proof, yet they formed very frequently the best possibly

1197
foundations for legislative proceedings. That was true of almost every case which did not involve a judicial inquiry. He concluded by moving that the third reading of the Bill be postponed to the 27th of April.
The Lord Chancellorwished to state shortly his objections to the Amendment of his noble Friend. He would not enter into the general topics connected with Reform, which had just been handled; but he must be allowed to say, that when the noble Lord referred to that well-known maxim of Lord Bacon, it was much to be regretted that he did not add the following words:—"It were good, therefore, that men in their innovations should follow the example of time itself, which indeed innovateth greatly, but quietly, and by degrees scarce to be perceived." The great point in the case was, whether bills of this kind should be considered as bills of Pains and Penalties. The case of Cricklade was so considered both by Lord Mansfield and Lord Thurlow, and was argued in that House upon principles altogether different from those which the noble Lord took up. The ground on which he would contend for the examination of witnesses was this—there was vested in the electors of East Retford a certain right which they had abused, and he had yet to learn how their delinquency could be shown otherwise than by an examination of witnesses. The House of Commons had appointed a Select Committee from out of their own body, but was that House satisfied with the Report of their own body? So far from being so, they examined witnesses themselves; and upon what grounds, then, could their Lordships avoid doing that which the Commons thought necessary? In the case of Penryn the House of Commons had a Select Committee, and examined witnesses themselves; yet their Lordships had examined witnesses at their own Bar, and arrived at a different conclusion from the House of Commons—the witnesses on the latter occasion having been examined on oath. The cases of Barnstaple, Grampound, Penryn, and Cricklade—every one of them supported the views which he took in opposition to the opinions of his noble friend, and established them beyond all controversy. The necessity for examining evidence being once admitted, their Lordships' ought, according to all principles of law, to pass such a bill as
1198
the present, to indemnify the witnesses against the consequences of their own evidence—otherwise that evidence might be incomplete; for a witness might refuse to answer, and then they would have to stop the proceedings to pass such a bill as this, which was found necessary in other cases, where a bill of the kind was passed in one night. It was necessary to protect a witness who gave evidence at the bar, in that way which would effectually guard against all prosecution; for though the evidence taken at the bar could not be used against a witness even without a bill, it might lead to such inquiry as would produce other evidence to convict him. According to the principle he had laid down, then, such a bill as this was necessary for the purpose of getting the fullest evidence. On the occasion of Grampound, in the same manner a bill was introduced for indemnifying the witnesses, and it was found necessary that that bill should be carried through all its stages in one night. The same mode of proceeding was resorted to in the case of Penryn, as the noble Earl (Carnarvon) near him could testify. There was no deviation from this course on their Journals. For the last thirty years, at least, it had been usual to indemnify such witnesses. The case of Scotland and of Ireland, at the time of the Unions, afforded no precedent, for there no case of delinquency was sought to be set up. On these short grounds, therefore, without touching upon the doctrines of general reform, or upon any of the other topics to which the noble Baron had alluded, he should move that this Bill be read a third time.
Lord Wharncliffesaid, that if an exanimation of witnesses were necessary, they must of course have a bill like that now proposed. Upon that point he apprebended there was no difference of opinion; but the question was, whether their Lordships ought to examine witnesses at all. To that he for one was extremely unwilling to become pledged. The preamble of the Bill stated that it was necessary to examine witnesses at the Bar of that House; and his objection was, that this expression seemed to impose the same course upon their Lordships upon all similar occasions. It would form a precedent which their Lordships would be obliged to follow in cases where there might be no necessity for examining witnesses. The question had already been before the regu-

1199
lar constitutional tribunal—not one merely constituted by the House of Commons, though proceeding from that body—it was the regular tribunal (a Select Committee) for the trial of such questions; it had examined witnesses and made a report, and that was all the House of Lords had a right to expect, or had any occasion for. He differed altogether from the noble and learned Lord on the Woolsack with respect to the powers of the Select Committee of the House of Commons. The powers of such committees did not stop where the noble and learned Lord supposed they stopped, for the Committee might report upon general malpractices. The Committee on the East Retford election stated in their report, that they considered it their duty to call the attention of the House to the general practice of bribery and corruption which had prevailed in elections for that borough. The noble and learned Lord therefore was wrong in supposing that the powers of such a committee were limited to the particular election. He came back, then, to his objection—namely, that the preamble of the Bill for ever precluded that House from proceeding on similar cases without evidence. If this 'were taking away a franchise, evidence might be necessary; but it did not take away a franchise, it only extended it to two thousand instead of confining it to two hundred voters. The proposed measure was, that others should partake of the right of voting for members for East Retford, but it did not deprive any one of that right. What was the right of voting? Why, merely the right of being represented by persons for whom the voters personally gave their votes. The personal representatives then would be still the same, though the proposed alterations should be carried into effect. He was no reformer. He thought that any great addition to the democratical power of the House of Commons would prevent the Government from going on so long as the Government remained a Monarchy. It was with pain, therefore, that he saw bills of this nature; but if they were to have such bills, let them deal properly with them. There was a reform pretty generally talked of, and one which but for his objection to any addition to the democratical power of the House of Commons, he should be inclined to consent to—he meant reform in the representation of the counties of Scotland, Now, ought the
1200
persons who proposed such a reform to be met by saying, "You must produce evidence in support of your proposal"? This would be preposterous, and so it would have been if the measure for disfranchising the Irish 40s. freeholders had been met in the same way. He thought that in the present case there was a prima facie case for their Lordships to proceed upon, and he could not, therefore, give his consent to the preamble of this bill, which said that it was necessary for their Lordships to call evidence, though he might agree to it if the words were altered to "it may be necessary."
Lord Wynfordthought their Lordships would act inconsistently with justice if they neglected to call evidence in a case like the present. It had been said by one noble Lord, "Wait, and see if any of the witnesses refuse to answer the questions put to them, before you pass a bill like this." He differed, however, from that noble Lord, and in this respect there was a shade of difference, too, between him and his noble and learned friend on the Woolsack. He would say that their Lordships ought not to wait to see if the witnesses would take this objection, for it was the duty of their Lordships to protect witnesses unasked, and to take care that neither the counsel nor any of their own body should press a man to give answers which would criminate himself. Again, it had been asked, "how do we know that any witnesses will be in this situation?" There would be very little difficulty in answering that question, for the evidence taken before the other House was upon their Lordships' Table; and their Lordships had only to look at that evidence in order to be assured that many witnesses would be in that situation. The question then was this—would their Lordships refuse to extend to these witnesses that protection which every court of justice in the country gave to every witness that came before them? The noble Baron (Lord Holland) opposite, in his very ingenious speech, had described the elective franchise as a trust. The more general, and, allow him to say, the more correct, description was "a trust with an interest." That it could not be sold was certain; but where property gave the right of voting, that property was saleable, and a man was in all cases allowed to hold out this right as a circumstance which enhanced the value of the property, If the right were

1201
not derived from property, still the description of "a trust with an interest" was correct; for would any one say that people had not an interest in sending to Parliament men who represented their opinions? This was not only an interest, but a most valuable interest—an interest, the possession of which the people of this country had often been envied. If the interest were not saleable, the property on which it depended was saleable, and in this respect it most resembled ecclesiastical patronage: though the patronage could not be sold, the property with which it was connected was saleable. Then came the question, whether it was fit to deprive a man of this interest, or to injure it, without evidence. Surely not. But it had been said by a noble Baron (Wharncliffe) opposite, that they did not deprive the voters of their franchise—that they merely admitted others to share it. Now he thought that noble Baron would consider that he was really deprived of a portion of his property, if a number of persons were admitted as joint-tenants with him in it [a laugh]. Was not this case the same? It seemed to him, that in proportion as the numbers were extended who were to partake of the interest, that interest was injured to the smaller number who had previously exclusively enjoyed it: to increase the voters from two hundred to two thousand was so far an injury to the two hundred. A great deal had been said whether the measure upon the Table was a bill of Pains and Penalties, or whether it was only a bill taking away a right for a public advantage. He agreed that it was not necessary to settle that point for the purpose of discussion, because either way a case ought to be made out. He agreed with Lord Mansfield and Lord Thurlow, that whatever diminished a right was so far a bill of Pains and Penalties; and he had looked through the Journals upon this subject, and in Hatsel's Precedents he found a case under the head of "Pains and Penalties," of a separation (not a divorce) between man and wife. At all events, the cases established this principle—that whatever was done by the Legislature which placed an individual in a worse situation than before the passing of the bill was, according to the plain dictates of common sense, a bill of Pains and Penalties. It had been said, that Parliament could do any thing but make a woman a man, but there was another
1202
thing Parliament could not do—it could not be essentially unjust; and it had never deprived a man of a foot of land for a public purpose without compensation. The noble Baron had admitted that the report from the Commons did not state to what extent bribery and corruption had taken place at East Retford, and the House, before it proceeded to disfranchise, would require that the degree and nature of the crime ought to be fully established. The noble Baron had argued, that as the bill deprived parties only of a public interest, it was not necessary to adduce evidence; and in support of this point, he had referred to the act transferring the Crown of this country from the Stuarfs to the family now upon the Throne, and to the recent statute disfranchising the forty-shilling freeholders of Ireland. These, however, were cases where Parliament had proceeded upon general notoriety, and witnesses were never examined upon matters known to the whole world. Was such the fact in the instance now before the House? Were the grounds of disfranchisement known to the House? He, for one, begged to state that he knew nothing of the circumstances, and that he required to be informed by evidence before he ventured to decide. The House was bound to inquire fully into the transactions at East Retford; and to shew how far the necessity of producing witnesses had in former times been carried, he need only mention the act of 15th Geo. 3rd, which prohibited the issue of small notes of 1s. and 1s. 6d. and other small sums, which at that period were circulated in Yorkshire. In that instance Sir George Saville had been required to produce evidence at the bar, of the existence of the practice, before the House of Commons would consent to adopt the proposed remedy. A fortiori, therefore, as the evil complained of was confined not to one county, but to one borough, it was incumbent upon Parliament to take care that distinct and positive evidence of criminality was adduced at the bar. The noble Baron (Holland) had objected to the disfranchisement of East Retford, because he thought it would retard Parliamentary Reform. He had his own opinions upon Parliamentary Reform, but he could not see in what way it would postpone that measure, supposing it desirable. On the contrary, it seemed to him that it was calculated to purify and keep pure the

1203
Assembly of the Representatives of the people; certain it was, that it never would be accomplished by an adherence to what was called the corrupt borough system. By measures such as that to which the Bill on the Table related, corrupt boroughs would be made to reform themselves; and if the principle were acted upon, it would prevent Parliament from getting worse, and keep it, as at present, as uncontaminated as any reasonable man could desire, and equal to all purposes for which it was instituted. Disfranchisement bills, when the necessity for them was proved, tended to counteract the injuries and inroads of time, and to renew the vigour of the Constitution.
Lord Hollandexplained: He thanked the noble Baron (Wynford) for the lecture he had been pleased to read him on the subject of Parliamentary Reform, and for the statement of the perfect acquaintance he had with his (Lord Holland's) views and wishes. He was not aware, however, that he had ever promulgated those views and wishes to the noble Baron, either publicly or privately; but sure he was, that rendering this House the bar to all improvement of this kind, was the true mode of producing that convulsive and violent reform which every man must dread. He expressed his obligation also to the noble and learned Lord on the Woolsack, for finishing his (Lord Holland's) quotation from Bacon, by a passage much more to his purpose than that which he had himself cited.
The Earl of Carnarvonconsidered this as a great public question, and trusted that their Lordships would not, without evidence, take a step which made an alteration in the Constitution. He agreed that general measures, such as those which had been instanced by his noble friends, might be passed without evidence, because they were to be determined by the dictates of public policy. So, there would be no necessity for evidence in support of an alteration in the representation of the Scotch counties; but, if it were proposed that the representation of one county—say the county of Lanark—should be altered, there would be a necessity for evidence, because that would be a particular, not a general measure. If, in such a case, their Lordships refused to hear evidence, he thought their Lordships would commit an outrage on the Constitution, and be guilty of a dereliction of their duty, The question before them was, whe-
1204
ther they would abandon a course which they had followed for sixty or seventy years, and adopt the unsatisfactory course now recommended. The bill stated, that there had been corruption in the borough of East Retford, and asked their Lordships to make alterations in the mode of representations without inquiring into the truth of the allegation respecting the existence of corruption? Even if there were no parties resisting the Bill, the Constitution ought to be considered a party requiring the proof. Although no Radical Reformer, he advocated these partial renovations, and perhaps had gone further than many in support of them. He did not think that the noble Barons who opposed the Bill, relied much upon their argument against the admission of evidence, because they had themselves allowed that some testimony was required when they urged that the witnesses called by the House of Commons ought to be considered sufficient. It was well known that the House of Commons by its committees sometimes entered only into that part of a case which related to the interests of the Petitioners, whereas here the inquiry ought to be more perfect and general. If the Bill under consideration could for a moment be construed to involve a pledge that the House would proceed without further inquiry, he begged to be considered no party to the admission of the evidence taken by the Commons, if it were the best evidence that their Lordships could obtain; and it could not be disputed that it was not. To pass the Bill without inquiring into the facts he thought would be throwing impediments in the way of rational reform, which he had endeavoured, by advocating measures of the kind, on more occasions than one, to promote. He should vote for any bill which gave the greatest latitude to the proof of corruption. It was necessary that witnesses should be compelled to answer; for that their Lordships could and would protect them. That was a proper course, and he thought that no delay on account of the want of evidence ought to be suffered to arise. As to the mode of dealing with witnesses, it was said that they might wait till that question arose. He did not agree with that proposition; for the expenses of bills like these were most enormous, and no delay that was not absolutely necessary ought to be allowed to occur. On these grounds he should vote for the Bill.
The Marquis of Salisburysaid, his noble friend opposite had recommended that to which he was most strongly opposed. That recommendation was, that they should adopt the proceedings on evidence with which the Members of the House of Commons themselves had not been satisfied—that was, the Report of the Select Committee. If they were not satisfied with that Report, surely their Lordships ought not to be less exact.
The Bill read a third time without a division.
Lord Hollandafterwards entered the following Protest against the Witness Indemnity Bill, in the matter of East-Retford.

1. "Because the provisions of the Bill pre-suppose an insufficiency of evidence, and the consequent necessity of resorting to extraordinary means to procure it, in the matter of a Bill lately brought up from the Commons, and entitled, "An Act to prevent Bribery and Corruption in the Election of Burgesses to serve in Parliament for the Borough of East Retford," whereas the decision of the other House of Parliament, founded first upon the report of a tribunal, appointed by Act of Parliament to try elections, and armed with all necessary powers for that purpose; and, secondly, upon the result of their own inquiries, raises a reasonable presumption, at least, that grounds sufficient to enable us to come to a sound determination on the legislative measure before the House may be obtained without a special suspension of the ordinary rules of evidence, and an anomalous purchase of truth by an extension of impunity to offenders.

2. "Because the recourse to such a preliminary act of power for the purpose of procuring evidence, implies (and the preamble directly asserts), before any petition has been presented to this House against the East Retford Bill, that an examination of witnesses at the Bar is absolutely necessary; and thereby sanctions a notion, in my opinion, erroneous, mischievous, and unconstitutional—namely, that the Bill that has lately passed the House of Commons, and all other measures of a like nature, are bills of Pains and Penalties, partaking of a judicial character, and requiring all that special and cautious regard to legal forms which distinguishes this House in the discharge of its judicial functions, and which it widely and mercifully extends to such legislative acts as
1206
pronounce sentence or inflict punishment, as well as to such as decide between parties applying for the interference of the legislature upon their respective properties and rights. But a Bill of Regulation, for the purpose of preventing bribery and corruption, and preserving the purity of representation in the Commons House of Parliament is not, ex vi termini, either a private bill or a bill of Pains and Penalties, and may consequently be adopted by Parliament, consistently with reason and usage, on a moral conviction of its justice, necessity, or expediency, without subjecting the facts or considerations which lead to its adoption to legal proof at the Bar of the House. The privilege vested by charter in any corporation to send members to Parliament, appears to me a trust and not a property. The individual elected in virtue of such privileges, though the immediate delegate of his constituents, is, according to the maxims of our Constitution, a member of the Supreme Legislature of the empire, and invested with a share of the representation of the people at large, for whose benefit he is bound to exercise his functions. It follows that the right of choosing such a representative, when conferred by any instrument or usage on any separate body of men, is a trust confided to that body of men for the benefit and advantage of the whole community. If, therefore, that trust be so administered as notoriously to defeat the objects for which it was created, and by polluting the sources from whence one branch of the legislature is supplied, to lower the character and impair the authority of the House of Commons, the Parliament is justified, by reason and analogy, in proceeding, on such moral conviction as guides it in every other measure of regulation or reform, to revoke, limit, enlarge, or transfer that trust in the way and to the extent which it deems most conducive to the advantage of the community. The most sacred and important trust which by law can be reposed in human authority—namely, the Crown itself, has been repeatedly in our history limited, regulated, and transferred by the King, Lords, and Commons in Parliament assembled, without any minute and juridical investigation of facts, and without that attention to technical rules and cautious forms which properly distinguish our judicial proceedings, but are utterly inapplicable, and would be inconvenient In those which have for their

1207
object the moulding a government to the exigencies and interests of the governed. On the same principles, the persons and places entitled to vote by themselves or their representatives in the Scottish Parliament, before the Union with that kingdom, had those privileges regulated, curtailed, modified, or suppressed, by a legislative act, without any legal proof of delinquency, or any judicial investigation of the nature and extent of such privileges, or of the manner in which they had been exercised. The legislative Union with Irish Peers of their votes in the House of Lords, and no inconsiderable number of boroughs of Ireland also deprived the majority of the their right to send burgesses to Parliament; and although certain compensations were granted to the latter, neither the preamble of the legislative Act, so depriving them of privileges, or compensating them for the loss, nor the grounds which induced the Parliament to pass it, were subjected to legal proof. More recently a large body of freeholders, entitled by common and by statute law to vote for Knights of the Shire in that kingdom, have been deprived by an Act of Parliament of that privilege; and the said act of Parliament, so far from being subjected to such judicial proceedings as usually attend private bills, or bills of Pains and Penalties in this House, passed the legislature without admitting the petitioners against it to be heard by themselves or their counsel, or to adduce evidence againt the allegations of the preamble in either House of Parliament. Concurring, therefore, with the greatest constitutional authority that ever sat in this House (Lord Somers) that "there are many things plain and evident beyond the testimony of any witnesses, which yet can never be proved in a legal way," I was unwilling, by inference, to sanction a principle which would fetter the functions of this House in the exercise of our legislative discretion and authority, and confine out-power of regulating and reforming abuses in the representation to such cases only as are susceptible of strict legal proof.

3. "Because, if the House of Lords were to establish the practice of proceeding as usual in private bills, or in bills of Pains and Penalties, as indispensable in bills of regulation and reform in matters of election, great delays would ensue and various impediments be thrown in the way of such wholesome reforms as the lapse of time and the exigencies of the country are
1208
likely to require, and such impediments, originating in scruples of this House, warranted by neither reason, analogy, nor example, would be highly injurious to the character of this House, as well as to the progress of sound improvement and wholesome legislation in the country.

(Signed) VASSALL HOLLAND."